National Insurnace Co. Ltd. vs Rojan Vivi & Ors
2012 Latest Caselaw 7114 Del

$ 28
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                                         Date of decision: 12th December, 2012
+        MAC. APP. 676/2012

         NATIONAL INSURNACE CO. LTD.                         ..... Appellant
                              Through:     Mr. D.K. Sharma, Advocate.
                        Versus
         ROJAN VIVI & ORS.                            ..... Respondents
                              Through:     Mr. S.N. Parashar, Advocate for the
                                           Respondents No.1 to 7.
                                           Mr. R.K. Jain, Advocate for the
                                           Respondent No.9.

         CORAM:
         HON'BLE MR. JUSTICE G.P.MITTAL

                                  JUDGMENT

G. P. MITTAL, J. (ORAL)

1. The Appeal is for reduction of compensation of `11,14,764/- awarded by the Motor Accident Claims Tribunal(the Claims Tribunal) in favour of the Respondents No.1 to 7 for the death of Islam Shekh who died in a motor vehicle accident which occurred on 10.07.2008.

2. The finding on negligence reached by the Claims Tribunal is not challenged by the Appellant Insurance Company; thus the same has attained finality.

3. The challenge in the instant Appeal is confined to the compensation awarded towards loss to estate, loss of consortium and loss of love and affection. It is urged that the compensation of `1,40,000/- towards loss to estate, `40,000/- towards loss of consortium and `1,40,000/- towards loss

of love and affection is excessive and exorbitant. The Claims Tribunal further awarded a counsel's fee of `72,000/-. The Appellant challenges the counsel's fee on the ground that the same is not in consonance with the Delhi High Court Rules and Orders.

4. In Sarla Verma & Ors. v. Delhi Transport Corporation & Anr, (2009) 6 SCC 121, the Supreme Court laid down that while awarding the compensation in fatal accident cases apart from awarding compensation on account of loss of dependency, a conventional amount in the range of `5,000/- to `10,000/- may be added as loss to estate. It was further laid down that where the deceased is survived by his widow, another conventional sum in the range of `5,000/- to `10,000/- should be added under the head of loss of consortium. It was stated that no amount should be awarded under the head of pain and suffering or hardship caused to the legal heirs of the deceased. Thus, the compensation of `1,40,000/- awarded towards loss to estate is reduced to `10,000/-. Similarly, the compensation amount of `40,000/- awarded towards loss of consortium is reduced to `10,000/-.

5. Loss of love and affection can never be measured in terms of money.

Thus, uniformity has to be adopted by the Courts while granting non- pecuniary damages. The Supreme Court in Sunil Sharma v. Bachitar Singh (2011) 11 SCC 425 and in Baby Radhika Gupta v. Oriental Insurance Company Limited (2009) 17 SCC 627 granted `25,000/- (in total to all the claimants) under the head of loss of love and affection. Thus, I would reduce the compensation under this head to `25,000/- only.

6. The Claims Tribunal while disposing of the Claim Petition awarded a sum of `72,000/- towards counsel's fee. This Court in 'ICICI Lombard General Insurance Co. Ltd. v. Kanti Devi & Ors.' (MAC. APP. 645/2012)

through which a number of Appeals were decided on 30.07.2012, interpreted the Rules for awarding the costs while deciding a Claim Petition. This Court held that the counsel's fee is payable only in terms of Rule 1 read with Rule 1A and Rule 9 of Chapter 16 Volume 1 of the Delhi High Court Rules and subject to filing the certificate of fee before pronouncement of judgment. No such certificate has been filed by the counsel for the Respondents(Claimants). The order with regard to the payment of counsel fee is, therefore, set aside.

7. In view of the above discussion, the compensation amount stands reduced from `11,14,764/- to `8,39,764/-.

8. By an order dated 04.07.2012, execution of the award was stayed subject to deposit of 80% of the compensation, which comes to `8,91,811/- which is more than the compensation awarded by this Court. Out of the deposited amount, a sum of `8,39,764/- along with interest as awarded by the Claims Tribunal and the interest earned, if any, during the pendency of the Appeal shall be released in favour of the Respondents(Claimants).

9. The excess amount of `52,047/- along with proportionate interest and the interest accrued, if any, during the pendency of the Appeal shall be refunded to the Appellant Insurance Company.

10. The Appeal is allowed in above terms.

11. Statutory amount of `25,000/-, if any, shall be refunded to the Appellant Insurance Company.

12. Pending Applications stand disposed of.

(G.P. MITTAL) JUDGE DECEMBER 12, 2012 pst